Every day, the Youth Justice Legal Centre, set up by the youth justice charity Just for Kids Law, sees the criminal justice system failing young people. Now a growing body of opinion agrees it is time for reform, says Laura Cooper
Last week, a mother called the Youth Justice Legal Centre to ask for our help. Her daughter, 14 (let’s call her Susan), had been sent indecent images of children to download, while on a popular chat room. Susan was already vulnerable and suffering from depression at the time. She became withdrawn but eventually told her mother what had happened. Her mother contacted the police – only for them to arrest Susan, instead of investigating the sender of the images. Susan was kept alone in police custody for several hours and, after months on police bail, she was charged. Susan went to court, was represented by a lawyer who didn’t specialise in youth justice work, and pleaded guilty. There was apparently no serious consideration of an alternative, out of court disposal. Instead of being recognised as the victim, Susan now has a criminal record and is likely to be affected by this experience for the rest of her life.
Yesterday, a barrister was at court representing her young client, 17 (let’s call him Joseph), for serious offences. The court wanted to remand Joseph to a Youth Offenders’ Institute hundreds of miles from his home. He had already spent the last seven days on a mattress on the floor of an adult police cell. The barrister felt the court and prosecution had not appreciated how vulnerable Joseph was. The court and YOT were discussing the various local authority accommodation and Youth Detention Accommodation (YDA) options on remand, and the barrister wasn’t sure what they were, or whether it would be possible to argue that he be kept as close to his family as possible.
These are just two examples of the kind of inquiries we regularly receive at the YJLC, which highlight the way in which vulnerable children and young people are being failed by the criminal justice system.
Too many children are arriving at youth courts and police stations every day and being treated as defendants first, children second. Not enough account is taken of the fact that children who come into contact with the criminal justice system are intensely vulnerable and, in many cases, have complex needs. These children frequently have speech, language and communication difficulties. A large proportion suffer from mental illness or a recognised special educational need (SEN). They are young, sometimes as young as 10 years old (the age of criminal responsibility in this country), extremely scared and confused. Many will be disillusioned with how the adults around them make decisions on their behalf.
For many years, the youth court has been seen as a sort of ‘rehearsal court’ for lawyers at the outset of their careers, enabling them to gain on-the-job experience before moving on to adult courts. This is not the fault of junior or inexperienced lawyers. There is no mandatory training specifically related to youth court work and lawyers are often ill-equipped to protect their clients and ensure the best possible outcome. They may have little or no knowledge of the relevant law, let alone any training in how to spot a young client who has additional vulnerabilities, or the best way to respond. Lawyers are not trained in the communication skills needed to explain complex legal issues in straightforward language or build rapport and trust with children in order to properly represent them.
These are the problems that the YJLC was set up to challenge. Created by the youth justice charity Just for Kids Law, YJLC is a resource for practitioners, YOT workers, families, or indeed anyone working in youth justice to turn to for legally accurate information and, often urgent, desperately needed support.
YJLC believes youth court work needs to be recognised as a specialism, and that it is time to change the way children and young people are treated and represented. There are positive signs things are moving in the right direction.
The Bar Standards Board (BSB) has recently announced proposals to ensure that advocates appearing in the youth court or proceedings involving youths are specialists. This means being able to demonstrate knowledge of youth justice law, as well as the ability to engage and communicate with children. This follows research commissioned by the BSB and CILEx Regulation last year, which found evidence of poor advocacy in the youth courts, with very grave consequences for children and young people. It found that many advocates lacked knowledge of youth justice law, procedures and provisions, and struggled to communicate well with young defendants and witnesses.
Children told the BSB researchers about their experience of being in court, one young person said: ‘It was loads of words like “ying” and “yang’’’; another said: ‘I didn’t really understand what they were saying. It was all like long posh words.’ These are not isolated examples, children are often effectively barred from taking any meaningful part in their own trial, an omission which can have serious consequences. Evidence shows that children who have not understood and effectively participated in the court process are less likely to comply with community sentences, less likely to be rehabilitated and more likely to end up back in court again.
As the BSB report recommends, the need for specialist representation of children is clear. Over the last 15 years, the numbers of children entering the youth justice system and coming to court, have declined dramatically. Between 2002/03 and 2013/14 there was a 75 per cent drop in first time entrants to the system. While we welcome this reduction, it means the children who do end up in court are likely to have greater vulnerability and need. Alongside this, legislative changes mean an increasing number of serious cases will be tried in the youth court (instead of being sent to the Crown Court for trial).
There is growing support for reform. The Solicitors Regulatory Authority (SRA) wants to develop a competency statement for the youth court and a toolkit for practitioners. In addition, the new Inns of Court College of Advocacy has also recognised the importance of youth court advocacy and is developing a number of online resources. YJLC is part of their Youth Advocacy Project working party.
The Michael Sieff Foundation produced a report summarising the findings of its conference, ‘Developments and Research Needs in Youth Justice’. The aim of the conference was to review the recommendations of the Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court chaired by Lord Carlile, and which was published in 2014, in light of recent changes. The report stated that there was a significant level of concern about the current position, with regard to legal representation of young people. It was noted that every lawyer or judge in the courtroom undertakes some specialist training in relation to working with children, save for the prosecutors and lawyers actually representing them. For some, they acknowledged, it may even be regarded as a training ground.
Things are clearly beginning to change, albeit far slower than we would like. Since YJLC’s official launch in November 2015, we have had a steady increase in youth justice legal enquiries, benefiting over 100 children, as well as providing indirect benefit for hundreds more.
YJLC already provides specialist youth justice legal training we hope to increase this, in order to reach more lawyers and create a real specialism, so that more and more children are represented by the most experienced, highly trained lawyers, with proven expertise in youth justice law (which is substantially different from the general criminal law).
The eagerly awaited Charlie Taylor review of the youth justice system is due to be published in the autumn. This, we hope, will advance a different approach to children in the justice system: one that advances these concerns, and which focuses on diversion, specialist legal expertise and even fewer children in police custody and in the secure estate.
The UN Committee on the Rights of a Child has recently issued its concluding observations on children’s rights in the UK, raising a large number of concerns and recommendations. Hopefully, the Taylor review will address some of these.
We would wholeheartedly support the views of Lady Hale, in the case of R (Smith) v Secretary of State for the Home Department  UKHL 51;
‘…the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders…. It is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met… that is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done.’
YJLC believes that it is vital that legal profession works together to ensure that young people receive the best possible legal representation for their sakes and those of the communities where we all live.
Laura Cooper is a lawyer at the Youth Justice Legal Centre, and has experience of representing children in both the Youth Court and Crown Court. She has practised as a solicitor advocate since 2011